BLAIR v NEW ZEALAND POLICE [2018] NZCA 613

BLAIR v NEW ZEALAND POLICE [2018] NZCA 613 [19 December 2018]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA210/2018[2018] NZCA 613BETWEEN PAUL ANTHONY BLAIRApplicantAND NEW ZEALAND POLICERespondentCourt: Winkelmann, Duffy and Peters JJCounsel: Applicant in personK Peirse-O'Byrne for RespondentJudgment:(On the papers)19 December 2018 at 12 pmJUDGMENT OF THE COURTThe application for leave to bring a second appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by Peters J)[1] The applicant, Mr Blair, seeks leave to bring a second appeal.1 The proposedappeal is against a decision of Woolford J, dismissing Mr Blair's appeal againstconviction for driving with excess breath alcohol.21 Criminal Procedure Act 2011, s 237.2 Blair v Police [2018] NZHC 664.[2] We may grant leave if satisfied that the appeal involves a matter of general orpublic importance or a miscarriage of justice may have occurred or may occur unlessthe appeal is heard.3Background[3] Mr Blair was convicted in the District Court of driving with excess breathalcohol following an evidential breath test (EBT)4 result of 761 micrograms of alcoholper litre of breath, well in excess of the permitted maximum of 400 micrograms.5Mr Blair defended the charges before Judge Treston, arguing that the high result wasdue to the application of an alcohol-based mouth gel he had applied liberally to hismouth plate some 45 minutes earlier.6 Mr Blair contended that the EBT device failedto distinguish between the alcohol in his mouth, allegedly from the "Medijel", and thatin the blood stream, as reflected in "alveolar breath".[4] Alveolar breath is deep breath from the lungs. The word "breath" is not definedin the Land Transport Act 1998 (the Act).[5] Mr Blair did not give evidence as to the precise quantity of Medijel he appliedto his mouth plate, nor did he provide any expert evidence as to whether that quantitywould have been sufficient to account for the excess above 400 micrograms at the timehe underwent the EBT. Accordingly, Judge Treston was satisfied the elements of theoffence were made out and entered conviction against Mr Blair.7 His appeal beforethe High Court was also dismissed.83 Criminal Procedure Act, s 237.4 As defined in s 2 of the Land Transport Act 1998.5 Police v Blair [2017] NZDC 28608.6 At [8].7 At [24].8 Blair v Police, above n 2, at [26].Application for leave for second appeal[6] Mr Blair now seeks leave to pursue the following points on second appeal:A: whether or not the High Court erred in law in:(i) having no or insufficient regard to the applicant's submission that: " there was actually no proper evidential breath test carriedout, as the "alveolar breath" was not being tested and that defenceis, clearly not ousted by section 64(4)(a) of [the Act] and;(ii) having no or insufficient regard to the statutory meaning of"breath" in subsections 64(4)(a) and 64(4)(b) of [the Act] and theapplicant's submissions that the meaning of "breath" in thosesubsections has to mean "alveolar breath" as the purposive approachto statutory interpretation requires that a statute be interpreted in theordinary meaning of the words but also in the light of its purpose.Analysis[7] Mr Blair's appeal does not involve a matter of general or public importance,nor is there a risk that a miscarriage of justice has occurred, for these reasons.[8] A defendant commits the offence under s 56(1) if he or she drives:(a) a motor vehicle;(b) on a road;(c) while the proportion of alcohol in his or her breath, as ascertained byan EBT subsequently undergone by the defendant under s 69 of the Act,exceeds 400 micrograms of alcohol per litre of breath.[9] We note that s 56(1) is not concerned with the proportion of alcohol in adefendant's breath per se, but with the level ascertained by the EBT. The result ofsuch an EBT will be determinative, subject to the defendant:(a) proving that result, or at least the excess above 400 micrograms, isattributable to some benign or involuntarily consumed product;9 or(b) electing a blood test.10[10] There is no dispute as to the first two elements of the offence. As to the third,there is no dispute that Mr Blair underwent an EBT, pursuant to the process set out ins 69 of the Act. It is not a requirement of the Act that the EBT test alveolar breath.Mr Blair did not elect to have a blood test to confirm the accuracy of the EBT,something he was entitled to do. Given that, there is no merit in Mr Blair's first point.There is no basis for an argument that the word "breath" as used in the Act meansalveolar breath.[11] Finally, neither of these arguments, even if they had merit, could assistMr Blair. This is because the evidence does not support his proposition that thereading was based on anything other than the proportion of alcohol in his alveolarbreath.Result[12] The application for leave to bring a second appeal is declined.Solicitors:Crown Law Office, Wellington for Respondent9 Two examples of cases in which a defendant has done so are Police v Leeder [2005] DCR 103, inwhich the result of the EBT reflected paint thinner with which the defendant had been working,and Pope v Police [2012] NZHC 1, in which it was a real possibility that the EBT result reflectedthe defendant's required use of an asthma inhaler immediately prior to being tested.10 Aylwin v Police [2008] NZSC 113, [2009] 2 NZLR 1 at [11].